Swedbank v. Hale Ave. Borrower Llc

• Decision Date: 15 November 2011
• Citation: 932 N.Y.S.2d 540,2011 N.Y. Slip Op. 08345,89 A.D.3d 922
• Parties: SWEDBANK, AB, New York Branch, appellant,v.HALE AVENUE BORROWER, LLC, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 922

932 N.Y.S.2d 540

2011 N.Y. Slip Op. 08345

SWEDBANK, AB, New York Branch, appellant,

v.HALE AVENUE BORROWER, LLC, et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 15, 2011.

DLA Piper LLP (US), New York, N.Y. (Joshua S. Sohn and Rachel V. Stevens of counsel), for appellant.Silverman Sclar Shin & Byrne PLLC, New York, N.Y. (Peter R. Silverman, Alan M. Sclar, Mikhail Ratner, Peter R. Silverman, and Vincent Chirico of counsel), for respondents.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action, inter alia, to foreclose two mortgages, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated December 9, 2010, as denied its motion for summary judgment on its causes of action to foreclose two mortgages on property owned by the defendant Hale Avenue Borrower, LLC, and for leave to enter a default judgment against the defendants Alexander Gurevich and Gennady Kiselman upon their failure to appear or answer the complaint, denied its separate motion for a protective order to preclude discovery and to quash certain discovery demands, and granted that branch of the cross motion of the defendants Hale Avenue Borrower, LLC, Alexander Gurevich, and Gennady Kiselman which was to compel the plaintiff to accept their amended answer.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, the plaintiff's motion for summary judgment on its causes of action to foreclose two mortgages on property owned by the defendant Hale Avenue Borrower, LLC, and for leave to enter a default judgment against the defendants Alexander Gurevich and Gennady Kiselman upon their failure to appear or answer the complaint is granted, the plaintiff's separate motion for a protective order to preclude discovery and to quash certain discovery demands is denied as academic, and that branch of the cross motion of the defendants Hale Avenue Borrower, LLC, Alexander Gurevich, and Gennady Kiselman which was to compel it to accept their amended answer is denied.

The plaintiff commenced this action to foreclose two mortgages on certain property owned by the defendant Hale Avenue Borrower, LLC (hereinafter Hale Avenue Borrower), and to recover on guaranties executed by the defendants Alexander Gurevich and Gennady Kiselman (hereinafter collectively the respondents).

The Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on its causes of action to foreclose on the mortgages. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the relevant mortgages, the underlying notes, and evidence of default ( see Rossrock Fund II, L.P. v. Osborne, 82 A.D.3d 737, 918 N.Y.S.2d 514; Wells Fargo Bank, N.A. v. Cohen, 80 A.D.3d 753, 755, 915 N.Y.S.2d 569; Petra CRE CDO 2007–1, Ltd. v. 160 Jamaica Owners, LLC, 73 A.D.3d 883, 884, 904 N.Y.S.2d 699; Household Fin. Realty Corp. of N.Y. v. Winn, 19 A.D.3d 545, 546, 796 N.Y.S.2d 533). In opposition, Hale Avenue Borrower failed to raise a triable issue of fact regarding its defenses ( see Amalgamated Tr. Union Local 1181, AFL–CIO v. City of New York, 45 A.D.3d 788, 790, 846 N.Y.S.2d 336; Quest Commercial, LLC v. Rovner, 35 A.D.3d 576, 825 N.Y.S.2d 766; Palm Beach Mtge. Mgt., LLC v. Red Tulip, LLC, 18 A.D.3d 379, 380, 795 N.Y.S.2d 559; compare Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 178, 451 N.Y.S.2d 663, 436 N.E.2d 1265, and pellicane V. norstAr bank, 213 A.D.2d 610, 611, 624 N.Y.S.2d 214, with Rossrock Fund II, L.P. v. Osborne, 82 A.D.3d at 737, 918 N.Y.S.2d 514). Moreover, contrary to the respondents' contention, that branch of the motion was not...